The OPEN Government Act of 2005: A Summary
The Openness Promotes Effectiveness in our National Government Act of 2005 (or OPEN Government Act, S. 394), introduced by Sen. John Cornyn (R-TX) and co-sponsored by Sen. Patrick Leahy (D-VT), would significantly strengthen the ability of parents, community leaders, bloggers, journalists and others to keep the public safe and free, make government open and accountable and strengthen American democracy.The Act would make it easier for the public to use the Freedom of Information Act (FOIA) by establishing a FOIA request tracking system, closing loopholes in the law, and strengthening tools for the public to fight improper agency delays and refusals to fulfill FOIA requests. Rep. Lamar Smith (R-TX) has introduced a version in the House of Representatives (H.R. 867).
Why the Freedom of Information Act (FOIA) is Important
The Freedom of Information Act has helped ensure that our families are safe and government is open and accountable. For example:
* A Massachusetts couple used open records laws to learn of plans to expand a local landfill used to dump medical waste, oil and other hazards. When exposed, the plans were dropped.
* Last year, an Arizona man used FOIA to obtain photos of flag-draped coffins of soldiers killed in Iraq or Afghanistan. The photos ran in major newspapers around the country and spurred a debate about the government's ban on media coverage of coffins returning from war.
* Before the widely circulated photos of prisoner abuse at Abu Ghraib, the Defense Department refused to quickly respond to several groups' request for documents detailing whether people held in U.S. custody in Iraq were subject to abuse or torture.
More Obstacles to Using FOIA
The OPEN Government Act comes at a time when public demand for government information is growing and government is becoming more secretive. Last year, the public filed over 3,000,000 requests for information from the federal government - an all-time high, even as government agencies are using the Internet to deliver more and more documents and information to the public. Interest in and use of the Freedom of Information Act has never been higher.
However, using FOIA to obtain documents from government has grown harder in many ways. For example, suing a federal agency is not an option for many FOIA requesters because of the associated steep costs, and FOIA lawsuits have dropped by roughly one-third in recent years.
In addition, some regular FOIA requesters are concerned that agencies are charging improper amounts to fulfill FOIA requests. The U.S. Department of Justice, the same agency that ensures federal agencies properly implement FOIA, asked the public interest group People For the American Way to pay $372,799 just for a search for documents relating to the detention of over 700 people after 9/11. In recent years, some agencies are now denying fee waiver status to groups who had previously received fee waivers from the same agency.
How the OPEN Government Act Would Strengthen Open Government
While the OPEN Government Act is not a be-all, end-all fix to FOIA, the bill would address many longstanding problems. Following is a summary of current shortcomings in how agencies implement FOIA and how the OPEN Government Act would fix them.
1) Cost of using FOIA
Waivers of fees charged for researching and duplicating records are not consistently applied for nonprofit groups, independent journalists, bloggers and others.
What the OPEN Government Act Does
Protects fee exemptions for requesters who have no institutional affiliation or prior publication history by directing agencies to consider the requester's plans for informing the public in deciding to grant a fee waiver.
2) Legal costs fighting agencies that improperly withhold
If an agency improperly delays or denies a FOIA request and forces a requester to sue for the information, then the requester pays to correct the agency's mistake because they may not recoup their legal costs.
What the OPEN Government Act Does
Forces agencies to pay the legal costs incurred by requesters when a lawsuit leads an agency to release documents.
3) Tracking system for FOIA requests
Requesters have no easy way of tracking the status of their requests
What the OPEN Government Act Does
Requires agencies to assign a tracking number to each request and allow the public to check the status of requests by the Internet or telephone.
4) FOIA ombudsperson
The public has too few tools to appeal agency denials.
What the OPEN Government Act Does
Establishes an ombudsperson outside of the agencies to objectively review agencies' implementation of FOIA, recommend changes to agencies' policies and procedures, and mediate disputes between requesters and agencies.
5) Consequences for agencies ignoring FOIA
Too few consequences exist if agencies arbitrarily or capriciously deny requests.
What the OPEN Government Act Does
Requires reports to Congress on investigations and enforcement actions that the Office of Special Counsel takes against agencies for arbitrarily or capriciously denying FOIA requests.
6) Timely responses to requests
Responses to FOIA requests are often delayed because of inadequate or inconclusive responses from agencies.
What the OPEN Government Act Does
Requires agencies to respond to FOIA requests within 20 business days from the date a request is received and limits what the agency can withhold if they fail to meet the 20-day deadline to information withheld for national security or privacy.
7) Reporting on Secrecy of Critical Infrastructure Information
No regular reporting on industry's ability to designate as secret (and exempt from FOIA) any information submitted to the Homeland Security Department on the nation's critical infrastructure.
What the OPEN Government Act Does
Requires the Government Accountability Office, the independent investigatory agency of Congress, to report annually on the number of times industry uses the Critical Infrastructure Information program to stamp information as secret.